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Wednesday, 13 September 2017
Page: 10192


Ms RISHWORTH (Kingston) (10:42): I rise to speak on the Defence Legislation Amendment (2017 Measures No. 1) Bill 2017. This bill contains four schedules, which seek to smooth processes, increase protections for reservists, realise a recommendation from the First Principles Review of Defence, add contemporary definitions and enable reclassification of those who leave Defence and later find they were eligible for a medical discharge.

Schedule 1 seeks to amend the Defence Act 1903 to enable a policy framework to broaden and expand the conditions under which a positive test for a prohibited substance may be disregarded, including in circumstances relating to appropriate usage of over-the-counter medication, and substances administered or dispensed by authorised persons. As it stands, Defence members and Defence civilians who test positive for a prohibited substance solely because they took a prescribed or over-the-counter medication are required to show cause why they should remain in service or why, in the case of Defence civilians, they should not be terminated. However, if the same medication was administered, supplied or prescribed by a qualified medical practitioner, the act allows the result to be treated as if it were negative. This change allows Defence to establish a policy which extends this negative result when medication has been administered, supplied or prescribed by medical officers, nurse practitioners, dentists, pharmacists or other health professionals, or by Defence internally authorised health and allied health professionals. In addition, a negative result would be recorded when it was obtained as an over-the-counter medication or as a pharmacist-only medicine or general sales medicine.

Labor is supportive of this practical amendment, which would smooth the process in circumstances where Defence personnel or Defence civilians test positive for over-the-counter medications or prescribed medications. This is an important amendment which would ensure that those individuals that are appropriately taking over-the-counter medication and prescribed medication are not, I think, unduly or unfairly penalised as a result.

Schedule 2 amends the Defence Reserve Service (Protection) Act 2001 to ensure that all reservists would be eligible for a full range of protections under the act in respect of their employment and education. The role of reservists in Australia is integral to maintaining our defence capability and helping safeguard the security and national interests of our country. Reservists act in an entirely voluntary capacity to provide support to the ADF, help rebuild following a natural disaster and deliver humanitarian support overseas. Reservists are fundamental to our capacity, and it is vital that support is provided to ensure that they are not disadvantaged by their participation. A review of the Defence Reserve Service (Protection) Act 2001 concluded that, while overall the act was working well, there were some enhancements which could be made to improve the act's clarity and consistency and to address some gaps in protections for reservists. These amendments are welcome and were strongly endorsed by the Defence Reserves Association. The association stated that this was first recommended in 2007 and accepted by Defence in 2008, and they are pleased to see these changes will be made.

This schedule seeks to make a number of other amendments, the first of which will expand the scope of employment, partnership and education protections by extending these provisions to all types of reserve service. Previously, voluntary continuous full-time service was only protected if the Chief of the Defence Force or a delegate had requested the member to undertake the service on that basis. This requirement caused unnecessary confusion for reservists and their employers as to whether the protections applied in any given case. These amendments will tidy up this issue by applying these provisions to all defence service.

The second amendment will expand the scope of financial liability and bankruptcy protections to apply to all operational service by reserve members, which previously only applied to continuous full-time service following a call-out under the Defence Act 1903. These provisions include the postponement of liabilities which would otherwise fall due after the member starts rendering service and protecting the member from bankruptcy proceedings while the member is rendering defence service. This change will apply protections to not only continuous full-time defence service following a call-out under the act but also continuous full-time defence service that is operational service that is either inside or outside Australia. This includes time spent preparing to render the operational service, such as predeployment training, and time spent decompressing after operational service. As we know, decompression is particularly important in helping to improve the mental health outcomes of our ADF members, and it's important that this is also recognised for reservists. Labor supports this change in recognition of the service being undertaken by reservists. In the event of them undertaking full-time operational service, it is logical that these provisions, which previously only applied to call-outs under the Defence Act, are extended to full-time operational defence service.

The third change under this section will establish a civil penalty regime to supplement the criminal offence provisions throughout the act, including provisions dealing with discrimination in employment and education. The civil penalty will have a minimum penalty of 100 units. These penalty provisions will be enforced under the standard provisions in the Regulatory Powers (Standard Provisions) Act 2014, which includes offences to, for example, prohibit conduct which discriminates against reservist members because they have, are or may render defence service. This new civil penalty regime will supplement the criminal penalties. It will provide a less cumbersome and technical enforcement process than criminal prosecutions, which can be difficult to prove given the insidious and indirect nature of discrimination.

In addition, the amendments will clarify the employment protections for reservists to give greater certainty about their rights when absent from employment to render defence service and enhance the educational protections to create an obligation on education providers to make reasonable adjustments to accommodate reservists' service. This provision is not intended to require an educational institution to award degrees or qualifications to people who have not completed all course requirements. Rather, it is about making adjustments such as allowing the member to defer undertaking or completing assessment or practical work or refunding or crediting fees paid by or for the member.

Finally, the amendments will also introduce an anti-victimisation and anti-harassment provision to improve the experience of reservist members in civilian workplaces. These amendments seek to clarify, provide consistency and cover any gaps in protections for those undertaking this important work. These changes are important and recognise the integral role reservists play in our defence capability. It is vital that individuals are not disadvantaged for their willingness to contribute. These changes will strengthen protections and make it easier for reservists. Most importantly, by making these amendments, we are demonstrating our ongoing commitment to our reservists and the part that they play in protecting Australia's national interest.

Schedule 3 of this bill will transfer the hydrographic, meteorological and oceanographic functions from the Royal Australian Navy to the Australian Geospatial-Intelligence Organisation. The transfer is expected to realise synergies in the exploration of imagery and other data to protect intelligence and non-intelligence related geospatial information in support of Australia's defence interests and other national objectives. This move is in accordance with a recommendation from the first principles review of defence, which Labor is broadly supportive of. We are pleased to see this being enacted in this piece of legislation.

The final schedule will align a small number of provisions in the Australian Defence Force Cover Act 2015 with other military superannuation schemes and provide clarity on the definition of a child of a member of an invalid. These amendments will ensure that members who resign from the ADF and later find that they could've been medically discharged will be able to apply to the Commonwealth Superannuation Corporation to have their mode of discharge circumstances reassessed.

This amendment is particularly relevant given our growing understanding of mental illness. When someone is experiencing difficulties, it is entirely reasonable that they might leave the service without considering their reason for leaving. Of course, there are many circumstances where ADF personnel leave the forces as a result of an unknown medical condition, be it physical or mental, and it is entirely appropriate that those individuals have the opportunity to have their circumstances reassessed. Essentially, this will allow individuals who, for certain reasons, were not discharged as medically unfit at the time of discharge to apply to the CSC at a later date to consider if the grounds existed on which a person could have been medically discharged because of physical or mental impairment they had at the time of discharge. If the CSC is satisfied that grounds exist they must, as soon as reasonably practical, determine the percentage of incapacity for civil employment at the time of medical discharge. Importantly, a provision will be inserted that enables a person affected by a decision of the CSC to request the CSC to reconsider that decision. Labor is supportive of this amendment, particularly given our understanding of mental illness and the obligation and desire to support those whose service may have had a greater impact on them.

This schedule also seeks to make amendments which will also create a more contemporary definition of 'eligible child'. This amendment will alter the definition, removing the requirement to apply a work test to a child over the age of 18 who is undertaking full-time study. This change will allow the continuation of the child subsidy payment, providing the child is in full-time education and has not reached the age of 25. This change will also allow a child to become eligible at a later date where the child is found to be ineligible at the time of the member's death—for example, where a child of a member is over 18 and ceases full-time study to care for a member or to undertake a gap year prior to the member's death and then subsequently resumes full-time study after the member's death while still under the age of 25. This amendment will provide additional benefits to children who have lost a parent and is consistent with defined benefit superannuation schemes for civilians.

In addition, with regard to benefit payments to eligible children whose parents have passed away, these amendments will remove the requirement for a child of a deceased member to be wholly or substantially dependent on the deceased member or an eligible spouse. This will ensure that all eligible children of a deceased member are recognised, regardless of where they reside, and does not unintentionally exclude children who would otherwise be found to be eligible if there were no eligible spouse. This amendment may result in more children being eligible under the new provisions and might also increase the amount payable for dependent children. However, the total pension cannot exceed 100 per cent of the deceased member's pension. These changes are in line with other military superannuation schemes and reflect contemporary definitions. Labor supports the amendments which will ensure support to these children who have tragically lost their loved one. It is fitting that we continue to support them.

This bill does improve processes and protections for members of the Defence Force, employees and defence industry, and their families. By smoothing processes, increasing provisions, adding contemporary definitions and enabling reclassification of those who leave Defence, this bill seeks to improve conditions. Importantly, this bill also recognises the important role of reservists in our Defence Force and provides them with welcome additional protections. Our defence people are our greatest asset and we must ensure we recognise the sacrifices made by our ADF members and, importantly, their families in service to our nation. Therefore, I commend the bill to the House.

Debate adjourned.